Foster v. City of Indio, 17-55167

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PER CURIAM.
• Citation: 908 F.3d 1204
• Parties: Ernest FOSTER, Sr., as Personal Representative of Ernest Foster, Jr.; R. F., Minor, By and Through His Guardian Ad Litem Raymond Foster; A. F., Minor, By and Through Her Guardian Ad Litem Raymond Foster; Raymond Foster, Individually, and as Successors in Interest to Ernest Foster, Jr., Deceased, Plaintiffs-Appellees, v. CITY OF INDIO; Richard P. Twiss, Individually and in His Capacity as Indio Police Chief ; Does, 1 Through 10, Inclusive, Defendants, and Jeremy Hellawell, Individually and in His Capacity as an Officer of the Indio Police Department, Defendant-Appellant.
• Docket Number: No. 17-55167,17-55167
• Decision Date: 20 November 2018

908 F.3d 1204

Ernest FOSTER, Sr., as Personal Representative of Ernest Foster, Jr.; R. F., Minor, By and Through His Guardian Ad Litem Raymond Foster; A. F., Minor, By and Through Her Guardian Ad Litem Raymond Foster; Raymond Foster, Individually, and as Successors in Interest to Ernest Foster, Jr., Deceased, Plaintiffs-Appellees,
v.
CITY OF INDIO; Richard P. Twiss, Individually and in His Capacity as Indio Police Chief ; Does, 1 Through 10, Inclusive, Defendants,
and
Jeremy Hellawell, Individually and in His Capacity as an Officer of the Indio Police Department, Defendant-Appellant.

No. 17-55167

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2018 Pasadena, California
Filed November 20, 2018

908 F.3d 1206

Konrad Muth Rasmussen (argued) and John P. McCormick, McCormick Mitchell & Rasmussen, San Diego, California, for Defendant-Appellant.

Justin Palmer (argued), Filer Palmer LLP, Long Beach, California; NaShaun Neal and Peter L. Carr IV, Sias Carr LLP, Los Angeles, California; for Plaintiffs-Appellees.

Before: A. Wallace Tashima, Sandra S. Ikuta, and Jacqueline H. Nguyen, Circuit Judges.

Dissent by Judge Ikuta

PER CURIAM:

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Officer Jeremy Hellawell was dispatched to investigate a 911 call from a citizen who reported that a man matching Ernest Foster’s description was walking toward a shopping plaza armed with a concealed handgun. As the incident unfolded, Hellawell approached Foster at the shopping plaza to investigate the report, Foster fled, and Hellawell ultimately shot Foster fatally three times in the back. Foster’s family (the plaintiffs) claim that Hellawell violated Foster’s Fourth Amendment rights and the plaintiffs’ Fourteenth Amendment rights. The district court denied Hellawell’s motion for summary judgment based on qualified immunity. Because we lack jurisdiction to consider questions of evidentiary sufficiency on interlocutory review, we dismiss Hellawell’s appeal of the court’s order with respect to the claims that the shooting violated Foster’s Fourth Amendment right and plaintiffs’ Fourteenth Amendment rights. We reverse the district court’s denial of qualified immunity on Foster’s other Fourth Amendment claims, because Hellawell’s actions during the investigative stop did not violate any clearly established law.

I

Because this case arises from the denial of Officer Hellawell’s motion for summary judgment, we view the facts in the light most favorable to the nonmoving party, here, Foster’s father and minor children (collectively, the "plaintiffs").¹ On July 4, 2013, at around 1:30 p.m., the City of Indio Police Department received an anonymous 911 call reporting an individual carrying a gun. The caller stated that a man "with a brown hat, aqua shirt, a blue aqua shirt, [and] black blue jeans" was "walking down Highway 111 toward subways and smoke shops with a handgun, with a ... gun in his right side pocket." The caller also described the man as a "55-year-old African-American gentleman weighing about 250 pounds with a hand gun in his right side pocket" and a "baby brown or beige ball cap." The caller further stated that the man did not point the gun at him, but "walked out of the liquor store" and "just opened the gun." The caller further stated that the man "was no stress to me, but ... he wants to let people know who he is."

The information provided by the caller was immediately dispatched over the police radio. Officer Hellawell received information that "a Black male wearing a tan hat, a[n] aqua-colored shirt, and dark-colored pants with a handgun in his pocket" was "last seen going towards Subway." Hellawell, who was wearing his police uniform, drove to the Indio Shopping Plaza near Highway 111, where the Subway was located. Because the Subway and Payday Advance Money Store had been robbed in the past, Hellawell’s first thoughts were that the tip might indicate a robbery was about to occur. Hellawell did not use his patrol car sirens on the way to the plaza and did not believe he was in danger "at that moment."

As Hellawell pulled into the parking lot near the Subway, he saw "a Black male wearing a[n] aqua-green shirt, wearing a tan hat and dark-colored pants" near the Subway. The man matched the description of the 911 call and, according to Hellawell, appeared nervous. The man, Ernest Foster, was standing against the wall next to the smoke shop adjacent to Subway. Hellawell exited his vehicle about ten feet from Foster. Hellawell did not see a gun in Foster’s hands or on his person. Hellawell identified himself as a police officer and stated: "Let me see your hands. Keep your hands where I can see them. I just need to

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talk to you for a minute." At that point, Foster started running away from Hellawell. Hellawell gave chase. According to Hellawell, he might have drawn his gun either when Foster made a movement or started to run.² Hellawell subsequently re-holstered the gun, because he would not run with a gun in his hand.

Hellawell chased Foster through the shopping plaza then down an alley between two stores. According to Hellawell, throughout the pursuit, Hellawell told Foster to "stop," and to "show me your hands." Hellawell yelled: "I believe you have a gun. Stop or I am going to shoot." Hellawell testified that Foster’s left hand was visible, but his right hand appeared to be holding something against his body. Hellawell did not see Foster holding a gun. At one point, Hellawell shot Foster with his taser; although one dart hit Foster, the taser did not affect him because, according to Hellawell, the other dart was dragging along the ground.

As the chase went on, Hellawell shot Foster with his service firearm either just before or shortly after Foster rounded the corner of a nearby store. According to Hellawell, he shot Foster when he was turning toward him with a gun in his hand. This account was corroborated by Officer Felipe Escalante and a civilian witness, Daniel Kelley. Escalante had driven to the shopping center in response to Hellawell’s report of foot pursuit. He testified that he saw Foster turn towards Hellawell and that Foster might have had "something" in his hands, but Escalante could not tell for sure. In a March 31, 2016 declaration, Kelley testified that he was smoking a cigarette outside of the Jack-in-the-Box, and saw Hellawell chase Foster behind the restaurant. He stated that as Foster ran by him, he saw Foster holding something in his hand. Kelley followed Hellawell, and saw Foster lying on the ground with a gun next to him.

Other witnesses offered differing accounts. Jaime Perez, who was waiting in his car in the parking lot, stated in his initial declaration on April 1, 2016, that he "saw a male running around the northeast corner of the AutoZone grasping an object up against his chest." He "watched the man go down" and he "noticed an object fall from his hand and land on the ground two feet in front of him." He stated that the object was a handgun. But in a second declaration on August 31, 2016, he stated that he had previously testified that he saw a gun fall from Foster’s hands only because the police officers who interviewed him said they had found a gun and he was scared and nervous during his interview. In the August 31st declaration, Perez stated, "I did not see a gun. Mr. Foster did not point a gun at anyone, nor did I see a gun in his hand." Rather, according to Perez, Hellawell shot Foster in the back "for no reason," and Perez "did not see [ ] Foster bend, shift, twist, or make any sudden movements before [Hellawell] shot him."

A third witness, John-David Vallesillo, witnessed the chase from his car. In his interview with the police on the day of the shooting, Vallesillo stated that he heard a volley of shots, after which he turned his head and saw Foster "facing away from [Hellawell], falling forward onto his face onto the ground." Vallesillo further explained that from his perspective, "I didn’t see a gun in [Foster’s] hands at any point and it looked like he was, he got shot in the back." In a later declaration, dated August 31, 2016, Vallesillo again explained: "I heard a volley of shots coming from

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the] general direction [of the police chase]. I also saw Mr. Foster fall face down onto the concrete." Vallesillo added that he "did not see Mr. Foster turn or bend towards the police officer" before the gunshots, "did not see Mr. Foster with a gun in his hand," and "did not see a gun on the sidewalk after the police officer shot him in the back."

Finally, Jose Flores, who observed the chase from his mother’s car, testified that Foster did not turn toward Hellawell during the chase. Flores saw Foster "lying face down on the concrete," but "did not see a gun in [Foster’s] hands or on the ground."

Foster was treated on the scene and later died at the hospital. The plaintiffs brought suit under 42 U.S.C. § 1983 against Hellawell, the City of Indio, the Indio Police Department, and Chief of Police Richard Twiss. They claimed violations of Foster’s right to be free from excessive force under the Fourth Amendment; violations of the family’s right to familial association under the Fourteenth Amendment; and unconstitutional municipal customs, practices,...